US v. Valle, No. 18-50199 (10-9-19)(Friedland w/M. Smith & Bastian). In a 1326 sentencing, the district court concluded, as a legal matter, that the government was not required to continuous presence from police contact (2004) and his subsequent arrest in 2017. The court held that there was a strong inference he stayed. Thus, he was eligible for various enhancements.  He received a 37-month sentence (rather than a range of 1 – 7 without enhancements).

On appeal, the 9^th found this inference to be error. The gov’t so conceded. The gov’t had to prove presence by clear and convincing evidence. US v. Jordan, 256 F.3d 922 (9^th Cir. 2001).  It did not. US v. Garcia-Jimenez, 623 F.3d 936 (9^th Cir. 2010). 

Here, the 9^th usefully summarizes the factors for the “clear and convincing” standards (Jordan), and the increasing emphasis on the factors of enhancements (4) and length of sentence (doubles). Both were present here. The 9^th also does a useful analysis on the types of evidence the gov’t needed to prove presence (Garcia-Jimenez). The 9^th discounted the argument that “well, of course the defendant stayed in the US because his of ties, family presence, and where else would he go.”

The 9^th vacated the sentence and ordered the mandate to immediately issue because of the guideline range applicable. He had already served 20 months. The 9^th barred the gov’t from arguing new evidence because they already had a bite of the apple.

Congrats to Fuller Mircheff of the Cal Central (Los Angeles) FPD.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/09/18-50199.pdf